UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4122
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
KEVIN COREY MCRAE,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. William L. Osteen,
Jr., Chief District Judge. (1:12-cr-00226-WO-1)
Submitted: September 20, 2013 Decided: October 3, 2013
Before WYNN, FLOYD, and THACKER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Michael E. Archenbronn, LAW OFFICE OF MICHAEL E. ARCHENBRONN,
Winston-Salem, North Carolina, for Appellant. Graham Tod Green,
Assistant United States Attorney, Greensboro, North Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Kevin Corey McRae appeals from the revocation of his
supervised release and his resulting twenty-four-month sentence.
On appeal, counsel has filed an Anders v. California, 386 U.S.
738 (1967) brief, averring that there are no meritorious issues
for appeal but questioning whether there was sufficient evidence
to support the finding that McRae committed a crime while on
supervised release. Neither McRae nor the Government has filed
a brief. We affirm.
On appeal, McRae asserts that the Government did not
satisfy its burden of proof with regard to the charged
supervised release violation of committing another crime.
Specifically, the district court determined that McRae possessed
a substantial amount of cocaine while on supervised release.
McRae argues that an informant’s hearsay evidence that McRae
would be possessing cocaine was not credible given that the
informant was his girlfriend. Further, he contends that the
“only evidence” presented regarding the identification of the
substance found on him was Officer Wenzel’s conclusory response
to a leading question.
The district court need only find a violation of a
condition of supervised release by a preponderance of the
evidence, see 18 U.S.C. § 3583(e)(3) (2006), and this court
reviews for clear error the district court’s factual
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determinations informing its conclusion that a violation
occurred. See United States v. Carothers, 337 F.3d 1017, 1019
(8th Cir. 2003); United States v. Whalen, 82 F.3d 528, 532 (1st
Cir. 1996). When reviewing the district court’s factual
determinations under the preponderance of the evidence standard,
the relevant facts must be shown more likely to be true than
not. See United States v. Kiulin, 360 F.3d 456, 461 (4th Cir.
2004).
We conclude that the district court did not abuse its
discretion in finding, by a preponderance of the evidence, that
McRae violated the condition of supervised release that
prohibited him from committing any additional crimes. Taken in
the light most favorable to the Government, United States v.
Green, 599 F.3d 360, 367 (4th Cir. 2010), the Government
proffered ample evidence to satisfy its burden of proof.
Officer Wenzel’s testimony established that McCrae possessed the
substance in question, and Officer Ognosky’s field test
indicated that the substance was in fact cocaine. Moreover, the
manner in which the substance was secreted on McRae’s body
suggested its illicit nature. Finally, the two officers
testified that they recognized the substance to be cocaine.
This evidence was more than sufficient to establish the
illegality of McRae’s conduct by a preponderance of the
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evidence. * See United States v. Copley, 978 F.2d 829, 830-31
(4th Cir. 1992) (holding that testimony regarding marijuana
plants found at defendant’s home—which he shared with others—and
defendant’s proximity to those plants was sufficient to
establish violation of defendant’s supervised release).
Pursuant to Anders, we have reviewed the entire record
for reversible error and have found no meritorious issues for
appeal. This court requires that counsel inform McRae in
writing of his right to petition the Supreme Court of the United
States for further review. If McRae requests that a petition be
filed, but counsel believes that such a petition would be
frivolous, then counsel may motion this court for leave to
withdraw from representation. Counsel’s motion must state that
a copy thereof was served on McRae. We dispense with oral
argument because the facts and legal contentions are adequately
presented in the materials before this court and argument would
not aid the decisional process.
AFFIRMED
*
While the district court also considered, to a certain
degree, the corroborated hearsay testimony that McRae was buying
cocaine and manufacturing crack, any error in that regard was
merely harmless as the remaining evidence was clearly sufficient
without considering the truth of the informant’s allegations.
See United States v. Johnson, 617 F.3d 286, 292 (4th Cir. 2010)
(standard of review for improper evidentiary rulings).
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